Obama’s Property Grab Should End at Supreme Court

Oct. 9 (Bloomberg) -- The Barack Obama administration tried
last week to convince the U.S. Supreme Court that the federal
government can deny landowners the use of their property for
years -- decades if need be -- without ever paying compensation.

Deputy Solicitor General Edwin Kneedler advanced this
remarkable proposition during oral argument in Arkansas Game and
Fish Commission v. United States, a case involving the damage
wrought by the Army Corps of Engineers in its operation of the
Clearwater Dam in Arkansas.

From 1993 to 2000, the Corps’s management of the dam caused
regular flooding of a 23,000-acre wildlife management area,
killing trees and depriving the commission of revenue from
timber sales.

Fortunately, the Constitution provides a remedy for such
abuses: the Fifth Amendment’s takings clause, which requires the
government to pay “just compensation” when it takes property for
public use.

The Supreme Court long ago established that citizens can
suffer a “taking” within the meaning of the Fifth Amendment even
if the government does not literally seize their property. In
the 1871 case of Pumpelly v. Green Bay Co., the court held that
government-caused flooding can constitute a taking -- rejecting
the outlandish argument that a property owner should have no
remedy as long as he still holds title to his (now submerged)
land.

Weak Argument

“It would be a very curious and unsatisfactory result,” the
court said in Pumpelly, if the state could evade the just
compensation requirement of the Fifth Amendment simply because
it had not taken property “in the narrowest sense of the word.”

Before the oral argument, the only serious legal question
was whether eight years of intermittent flooding met the
definition of a taking. Some Supreme Court precedents have
suggested that such “regulatory takings” -- that is, where the
government does not literally seize property -- must be
permanent in order to trigger the Fifth Amendment’s compensation
requirement.

Even on that narrow question, the federal government had a
weak argument. There was nothing temporary about the damage
caused by the Corps: The deceased trees are permanently dead;
the lost timber revenue is gone forever.

The federal government, however, came to the Supreme Court
with a much more sweeping argument. Even if the Corps had
permanently flooded the plaintiff’s property, Kneedler said,
there would be no Fifth Amendment taking because people who live
on a flood plain are aware of the risks of inundation. “When you
live on a river and you know the consequences of having a flood
control project on the river, that’s what happens.”

Whether the damage is caused by God or the federal
government would seem to make no legal difference to the Justice
Department. By that logic, the government would bear no
liability for causing property damage along the West Coast
because, after all, people who live in an earthquake zone are
bound to get whacked sooner or later. The same could be said of
Tornado Alley. Or the Gulf Coast.

The principle behind the administration’s argument is that
the government must be empowered to “adjust the benefits and
burdens” of living alongside a river -- without the expense of
having to compensate the poor souls who end up with more burden
than benefit. But that assertion turns the Fifth Amendment on
its head.

The very purpose of the takings clause is “to bar
Government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the
public as a whole,” as the Supreme Court stated in Armstrong v.
United States (1960). By requiring the government to pay
compensation, the Fifth Amendment spreads the burden of takings
among all taxpayers.

‘Takings’ Test

Arkansas Game and Fish Commission is the first takings case
to arrive at the Chief Justice John Roberts court. The justices
should take the opportunity to reject the government’s position
and uphold the historical scope of Fifth Amendment property
rights.

Even some liberal justices were taken aback by the
government’s demand for unfettered discretion over the “benefits
and burdens” of private property.

“I must be slow today,” Justice Sonia Sotomayor said,
referring to Kneedler’s description of when a legal taking
occurs. “I am having significant problems with your articulation
of your test.” Alas, the problem was not Sotomayor’s.

(Adam Freedman covers legal affairs for Ricochet. His
latest book is “The Naked Constitution: What the Founders Said
and Why It Still Matters.” The opinions expressed are his own.)

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